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Cross-Israel Highway Leads the Way to Public-Private Partnerships - International Law Office

Projects & Procurement - Israel

Cross-Israel Highway Leads the Way to Public-Private Partnerships

Having realized that state funds alone do not provide the levels of investment necessary for improved infrastructure (ie, roads, railways, schools and hospitals), the Israeli government is forging public-private partnerships. It is considering several build-operate-transfer (BOT) projects and the BOT model looks set to become the means through which large-scale infrastructure development is implemented in Israel.

The Cross-Israel Highway Project is in its second year of construction, having achieved financial close in October 1999. It is the first major project finance transaction to be implemented in Israel. Structured on a BOT model, the highway will stretch for 86 kilometres (km) from Hadera to Gedera with up to eight lanes, 13 interchanges, 80 bridges, 100km of agricultural roads and a 400 metre tunnel. Sophisticated electronic tolling technology will allow highway users to travel without having to stop at toll collection points. Such a system has already operated successfully for several years in Canada, on Highway 407.

The project has enjoyed broad political support since its inception, having continued uninterrupted through the governments of Yitchak Rabin, Benjamin Netanyahu, Ehud Barak and Ariel Sharon.

Governmental Support

The Israeli Parliament (the Knesset) enacted the Toll Road (Israel National
Highway) Law 1995, establishing the basic terms of the concession (including
the route of the highway, the right to charge tolls, powers to be awarded
to the concessionaire and principles to be included in the concession agreement)
and the method for requisition of the site's land. Thereafter, regulations
were promulgated in order to support activities by the concessionaire to enforce
payment of the toll.

In order to implement the project the government established a special purpose state owned corporation, Cross Israel Highway Ltd (CIHL), responsible for planning and selecting a concessionaire through an open tender process and coordinating relevant government ministries.

The government has also agreed to:

provide the project with a partial revenue guarantee which requires it to share in the traffic risk, but also allows it to share in the project's economic performance where it is better than expected. If forecast revenues exceed actual revenues, the state will pay 80% of the difference to the concessionaire. However, if the reverse is the case, the concessionaire
will pay 57% to the state;

assume responsibility for procuring and clearing land for the highway;

complete the initial phases of construction of two interchanges during the tender process; and

reflect the cost of borrowing in the toll rate adjustment mechanism.

As part of the transaction structure, the state was granted options of up
to 49% of the equity of Derech Eretz Highways (1997) Ltd (DEC). The exercise
price was determined in the concession contract, and the options become available
between completion of the construction works and the end of the concession
period. The state may exercise the options and enjoy the project's economic
benefits without becoming a shareholder of DEC.

Tender Process

The tender process commenced in 1995 and took place over an 18-month period. Four international consortia were pre-qualified to participate. In the first quarter of 1998 DEC was selected as the project's preferred bidder.

DEC's sponsors comprise two Israeli entities and one foreign consortium. The Israeli entities are Africa Israel Investments Ltd (a large Israeli investment company) and Housing and Construction Holding Company which, through its subsidiary Solel Boneh, is one of Israel's largest construction companies. Canadian Highways Investment Corporation is a consortium consisting of Aecon Inc and Amec Inc, among others. It was responsible for the construction and initial operation of Highway 407 in Canada, and has advised on the Israeli project accordingly. The Israeli sponsors were instrumental in obtaining financing (arranged by Bank Hapoalim, one of Israel's largest banks), while Canadian Highways Investment Corporation helped to obtain the support of Newcourt Capital (now owned by the CIT Group).

In addition to the state's obligations and those of DEC to design, build and
operate the highway for the entire concession period, the concession contract
includes a requirement that DEC expand the highway when certain predetermined
traffic triggers are reached. The triggers are expected to be reached every
several years between construction completion and the end of the concession
period.

The costs of highway expansion had to be projected as part of
the project's financial structure since additional debt cannot be incurred during
the project's lifetime. A dedicated reserve fund has been established in order
to guarantee the availability of sufficient funds when necessary to implement
the expansion.

Other features of the concession contract include DEC's obligation to construct
four service stations along the highway, a portion of the income from which is payable to the state as a supplement to the partial revenue guarantee provided by it. In addition to providing highway users with service areas for refuelling, recreational and rest purposes, the service stations will provide DEC with important non-toll revenues with which to bolster the financial model upon which the project's viability is based.

The term of the concession is 30 years. Deadline extensions will be granted for completion
of the construction works only (ie, not for the concession period itself).

The concession contract includes restrictions on the transferability of the
concession and/or shares of DEC.

Financing

The project was structured with 90% debt and 10% equity. The bank debt was
provided through a shekel facility equivalent to $850 million which was arranged
and syndicated by Bank Hapoalim. In addition, $250 million was provided by CIT
Group in the form of a private placement.

The shekel syndicated loan consisted of two tranches, one incorporating a sophisticated
step margin which facilitates a lower toll for the early years of the project,
and the other being at a fixed interest rate for the entire term. The facility
includes a 6.5 year roll-up of interest and is based on a 28-year term. Standard
and Poor's gave the note purchase facility a 'BBB-' rating.

Senior lenders are protected through the establishment of several reserve funds
and charges over the assets of DEC and the equity contributions of shareholders.

Construction

As part of the project's structure, DEC procured the construction services
through a joint venture comprising affiliates of the DEC sponsors. The construction
agreement comprises a fixed-price, lump-sum, date-specific turnkey contract based on the assumption that all construction risks are borne by the joint venture (unless and to the extent that a particular risk is assumed by the state pursuant to the concession contract). The agreement is structured to pass construction and design risk to the construction joint venture.

The project is structured to open in phases in order to provide a 'run in' period prior to full-scale opening. Two sections of the highway have already been opened. The joint venture has provided DEC with a guarantee of revenues to be collected during this period. The joint venture's obligations were supported by joint and sponsor guarantees, a surety bond and several letters of credit.

Operation

DEC is obliged to operate the highway through an operating company, which is
an Israeli company owned by affiliates of the sponsors.

Comment

The Cross-Israel Highway project is the first major privately financed project
to be implemented in Israel, serving as an important experience for the government,
lending institutions and the private sector, and setting the standard for future
projects in Israel.

For further information on this topic please contact Jonathan Finklestone at Yehuda Raveh & Co by telephone (+972 3 562 0303) or by fax (+972 3 561 8558) or by email (ravehtlv@ravehtlv.co.il).

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